Wednesday, November 27, 2013

Enhanced Online Legal Research Resources Available at Ohio Supreme Court Law Library

 The Supreme Court’s news service this morning announced patrons at the Supreme Court’s law library will now have free access to more resources when they perform legal research thanks to new upgrades obtained with a new contact with Westlaw, according to Erin Waltz, library public services manager, allowing WestlawNext  to be available on two patron terminals, one each on the north and south sides of the 11th-floor library at the Thomas J. Moyer Ohio Judicial Center on South Front Street in Columbus, Ohio.

  Waltz said the contract includes access to all major Ohio legal treatises, statutes, regulations, jury verdicts, and briefs, as well as civil and criminal pleadings, motions and memoranda. In addition, the contract includes access to case law, statutes, and regulations from the other 49 states and federal cases, statutes, regulations, and legal treatises.

 The Court’s Law Library is open to the general public, providing a full range of services to all patrons in addition to providing library services to the Justices and Supreme Court staff,  state legislature, state administrative agencies, and attorneys.

Library’s online databases

Exclusionary Rule & Suppression in First Circuit Unlawfully Obtained DNA Case

 A Law Journal article Monday relayed “the First Circuit Court of Appeals on Nov. 22. in U.S. v. Thomas agreed with defendant Michael Thomas that authorities violated his Fourth Amendment rights when they obtained his DNA during a Postal Inspection Service’s prior investigation of suspicious mail sent to his former school. Thomas was never charged in that case, and the investigation was closed in 2006, but the First Circuit panel none-the-less upheld U.S. District Judge D. Brock Hornby of Maine’s ruling in 2011 not to suppress that evidence and Thomas was subsequently sentenced last year to 71 months in prison on charges related to threatening the lives of various politicians.

  Chief Judge Sandra Lynch of the First Circuit wrote the opinion, joined by judges William J. Kayatta Jr. and O. Rogeriee Thompson, stating in pertinances:

“… While we agree with Thomas that the method of                    obtaining his DNA, under Maryland v. King,                                 133 S. Ct. 1958(2013), violated the Fourth                                     Amendment, we affirm, under Herring v.                                      United States, 555 U.S. 135 (2009), the district                           court's denial of Thomas's motion to suppress in                         2011.

  “Relying on Herring v. United States, supra, the                           court concluded that the exclusionary rule                                   should not be applied because there was no                                  flagrant or deliberate police misconduct at any                            point, deterrent value, given this absence. The                            costs of exclusion, the court reasoned, outweighed                    the benefits.

“The exclusionary rule is ‘designed to safeguard                         Fourth Amendment rights generally through its
deterrent effect.’ United States v. Calandra,                                 414 U.S. 338, 348 (1974); see Davis v. United                                States, 131 S. Ct. 2419, 2426 (2011) ("The                                         [exclusionary] rule's sole purpose . . . is to deter                        future Fourth Amendment violations." (emphasis                      added)). Exclusion is not an automatic                                             consequence of a Fourth Amendment violation,                         but rather is available only where the benefits of                        deterring the police misconduct that produced the                    violation outweigh the costs of excluding relevant
    evidence. Herring, 555 U.S. at 141.

“Importantly, in Herring, a case involving a                                  negligent mistake, the Court held:

'To trigger the exclusionary rule, police                           conduct must be sufficiently deliberate that
exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. . . . [T]he exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. 555 U.S. at 144.'

“There is no serious argument presented that Herring's deterrence-based analytical standards are limited to cases of error produced by negligence, and we apply those standards here.

“Significantly for our purposes, the Herring criteria also include consideration of whether thepolice error is 'attenuated' from the events that occur following the error. 'Attenuatio' ispresented by Herring as a necessary component of its deterrence analysis. Where an error "arises from nonrecurring and attenuated negligence," the Court held, it is "far removed from the core concerns that led us to adopt the [exclusionary] rule in the first place," and because the resulting deterrent value is necessarily minimal, exclusion is not warranted. 555 U.S. at 144.”

Immunities in Drug Emergency Assistances

  Ohio Representatives Robert Sprague & Denise Driehaus introduced a bill on  11/26/2013 seeking  to provide an immunity from arrest, prosecution, conviction, or supervised release sanctioning for minor drug- possession offenses for a person who seeks or obtains medical assistance for him/her-self or another person who is experiencing a medical emergency as a result of ingesting drugs or alcohol, or for a person  experiencing such a medical emergency and for whom medical assistance is sought.

The bill would substantially provide that…
  “Sec. 2925.11(B) (2)(a) A person acting in good faith who seeks or obtains medical assistance for another person who is experiencing a medical emergency as a result of ingesting drugs or alcohol shall not be arrested, charged, prosecuted, convicted, or penalized pursuant to this chapter for a minor drug possession offense or be found in violation of any community control sanction or post-release control sanction based on a minor drug possession offense if the evidence of the obtaining, possession, or use of the controlled substance or controlled substance analog that would be the basis of the offense was obtained as a result of the person seeking the medical assistance……
Text of Introduced Bill

Monday, November 25, 2013

Indiana’s Seventh Circuit Orders Further Review of "Robocall" Ban

  We all know what “robocalls”  are --- computerized auto-dialers calling at dinner time or whenever, delivering a pre-recorded message telling us a prescription’s ready, wanting us to buy something, or vote for one guy, some issue, or something else.

  Wikipedia relates “The federal Telephone Consumer Protection Act of 1991 (TCPA) regulates automated calls, with all robocalls --- though exempt from the National Do Not Call Registry --- still having to identify who is initiating the calls and including a telephone number or address whereby the initiator can be reached to be considered legal [See 47 U.S.C. § 227(d)(3); 47 C.F.R. §64.1200(b)]. That article continues by saying “Some 23 states have laws that regulate or prohibit political robocalls in one way or another. Indiana and North Dakota prohibit automated political calls; In New Hampshire, political robo-calls are allowed, except when the recipient is on the National Do Not Call Registry; and many states require the disclosure of who paid for the call, often requiring such notice be recorded in the candidate's own voice.”

  The patch-work of state laws previously implied regulating political robo-calls has created problems for national campaigns over the years -- now highlighted with a National Law Journal’s article this morning about the  the Seventh Circuit Court of Appeals having remanded Patriotic Veterans v. State of Indiana back down to Southern District of Indiana Judge William Lawrence for a consideration of the ban’s First Amendment implications, along with reversing his September 2011 ruling that the Federal Telephone Consumer Protection Act pre-empted the Indiana law as it applies to interstate robo-calls. Lawrence had granted an injunction, but the Seventh Circuit stayed it that December.

Thursday, November 21, 2013

Ohio Mayors’ Courts new online caseload reporting portal

  In Ohio, "mayor's courts" existed by virtue of the law conferring jurisdiction on officials of  municipal corporations to hear and determine prosecutions for violations of municipal ordinances and certain moving traffic violations up until 2002 without population formalities. In that year, however, House Bill 24 “generally imposed such a requirement by specifying that only mayors of certain municipal corporations having a population of more than 100 had jurisdiction to hear and determine such prosecutions.” (Sec. 1905.01.) At about the same time HB 490 (2002) and SB 57 (2003) came along proscribing Sec. 1905.033. (A), in which “mayors of a municipal corporation who conduct a mayor's court shall register annually with the supreme court as provided further in this division…  not later than the fifteenth day of January in any year in which the mayor conducts a mayor's court or at least fifteen days before the mayor first conducts a mayor's court in a particular year, whichever is later…” This past March legislation was passed further “increasing from more than 100 to more than 200 the population necessary for a municipal corporation to have a mayor's court and jurisdiction over certain specified matters.  [HB 606 ]

  The Supreme Court’s news service earlier this week reported that Ohio’s 300-plus mayor’s courts will now be receiving new prompts to comply with their caseload reporting requirements under a new online portal developed by the Ohio Supreme Court when they register their courts by that January 15, 2014 deadline, including a 23 minute video presenting an overview of the registration and quarterly reporting process. [Mayor's Courts Registration & Reporting]

Wednesday, November 20, 2013

Presentence investigation reports in criminal case before sentencing

 The Ohio Supreme Court’s new service Monday morning made note of the Court’s hearing State of Ohio v. Lashawn Amos and Christopher Richmond v. State of Ohio on Tuesday, both asking whether trial courts must consider a presentence investigation report in a criminal case before sentencing a defendant to community control, with the state noting that the appellate court decided the cases on the same day, but seemingly to have ruled differently on the issue. The state asserted Ohio statute (ORC 2951.03) and Crim Rule 32.1 make pre-sentence reports mandatory before a court can impose a community control sanction.

State of Ohio v. Lashawn Amos case docket
            Memorandum in support of jurisdiction
            Appeals case, State v. Amos, 2012-Ohio-3954 

State of Ohio v. Christopher Richmond case docket
         Memorandum in support of jurisdiction                                   Appeal case, State v. Richmond, 2012-Ohio-3946 

Ohio Veterans’ Health Care System proposed

A bill to create an Ohio Veterans’ Health Care System  was introduced by in the Ohio House yesterday by Representative Lynn Wachtmann “to provide eligible veterans with comprehensive health care services, including health, medical, hospital, dental, and surgical benefits.”

  The program would to provide veterans who are eligible for benefits under Medicaid, to instead be provided  health care insurance through this veterans health care program. When the Ohio veterans health care system becomes operational, veterans receiving health care benefits under the medicaid program will instead  be transferred to and enrolled in the Ohio veterans health care system.

  Principal with the bill -- Sec. 5902.20(C) would provide that “the director of veterans services, in consultation with the superintendent of insurance, the director of administrative services, and the director of job and family services, select the structure of the system from one of the following three options:
 (1) A state subsidized comprehensive health care plan provided by an insurance company authorized to do business in this state;
(2) A state subsidized high deductible health care plan provided by an insurance company authorized to do business in this state, to be provided in conjunction with an obligation for the state to make periodic direct deposits into an individual health savings account, established by the veteran, which qualifies under Section 223 of the Internal Revenue Code; or
      (3) A voucher program that grants subsidies to            eligible veterans for purchasing private health            insurance under the Patient Protection and                Affordable Care Act, Pub. L. No. 111-148,                    124 Stat. 119, through its health insurance                  marketplace exchange to the extent not                      otherwise  subsidized under the Patient                       Protection and Affordable Care Act.
Text of HB 353

Tuesday, November 19, 2013

Arguments ricochet around Ohio gun bill debate

An article in yesterday morning's Columbus Dispatch heralded “the latest proposals sweeping changes to Ohio gun laws, including a 'stand your ground' provision, has generated fierce debate in the state’s House ."

  House Bill 203, introduced last June by Representative Terry Johnson, amended by a substitute bill in the Policy & Oversight Committee last month, contains several controversial provisions that have drawn fire from law enforcement and advocates for gun restrictions., including efforts to ensure that cities can’t avoid paying attorneys fees when their gun laws are challenged, and ensuring that people don’t get concealed-carry licenses in Ohio who don’t even qualify for purchasing a gun. It is scheduled for a possible committee vote today.

 The Dispatch article contains a look at some major provisions and arguments from both sides of the debate.

Friday, November 15, 2013

Ohio Delay in Execution of Ronald Phillips

Ohio Gov. John Kasich announced last Wednesday that he has postponed Ronald Phillips' execution date until July of next summer in order to investigate whether the convicted killer’s organs can be donated to family members.

  Phillips, the Cleveland Plain Dealer yesterday reported, was sentenced to death in 1993 for raping and killing the 3-year-old daughter of his girlfriend and was denied clemency by Kasich on November 7th. His execution has drawn some notice over the past months as he would’ve been the first person put to death in Ohio using a new and untried lethal-injection cocktail consisting of midazolam, a sedative, and hydromorphone, a morphine derivative. With execution postponed, Dennis McGuire may become the first inmate put to death using the new cocktail. McGuire, a Preble County man convicted of raping, choking and stabbing a pregnant woman in 1989, is scheduled to die Jan. 16, 2014.

    Phillips had initially approached The Department of Rehabilitation and Correction earlier this week, which denied his of seeking to determine whether he would be a viable organ donor to his mother, who has kidney disease, and his sister, who has a heart condition, according to the Associated Press. Phillips is also willing to donate organs to other people if he couldn't help his relatives, his attorney, Lisa Lagos, told the AP. Lagos said the request wasn't a delaying tactic but an attempt by Phillips to make a final gesture for good. That request had been denied with the DRC saying it wasn’t aware of any other time that an Ohio death-row inmate has made an organ donation, according to spokeswoman JoEllen Smith, although noting that it has happened in other states such as California, where a SFGate article back in April 1995 reported convicted killer Steven Shelton’s donating one of his kidneys  to save his mother's life after his brother, Nelson Shelton, also sentenced to die for beating a man to death after an 18-hour drinking binge in 1992, first offered but was not a compatible donor, was executed in March. Steven Shelton was scheduled to die April 5, but received a stay because he has not exhausted his appeals. That article proceeded to say that “that transplant is not the first from an inmate to a relative, but it was believed to be the first time an inmate condemned to die has donated an organ. Officials at the Death Penalty Information Center in Washington and the United Network for Organ Sharing in Richmond, Va., knew of no other death row transplant cases.”

  The issue isn’t really that unique as Gov. Kasich said in a statement to the Associated Press that he “realized this is a bit of uncharted territory for Ohio, but if another life can be saved by his willingness to donate his organs and tissues then we should allow for that to happen, and said he wanted to allow time for medical experts to study whether Phillips could donate non-vital organs, such as a kidney, before being executed.” It did open questions, though.

   A Columbus Dispatch article this morning said “questions abound after Gov. John Kasich’s unprecedented decision to postpone Ronald Phillips’ execution: Who pays his transplant bill? What are the ethical and logistical concerns? Will anyone want organs from a child rapist/killer?

  “Halting an execution to allow an inmate to donate his organs is unprecedented in the United States, leaving even experts such as Dr. Robert Higgins, director of Ohio State University’s Comprehensive Transplant Center, at a loss about what happens next.“It raises ethical and moral dilemmas and will require some deliberation,” he told The Dispatch. “It’s unclear how the process will move forward. That’s a logistic nightmare."

  Other media sources raise questions about the practicality and ethical hurdles imposed as well. An NBC News article yesterday categorized it as a “a proposal that experts say would be a logistical nightmare and an ethical minefield,” and cites Arthur Caplan, a professor of medical ethics at NYU Langone Medical Center, as saying, “"The only options for executing someone to obtain vital organs is to either shoot them in the head or chop their head off and have a team of doctors ready to step in immediately. No doctor is going to do it," he said. "It violates all medical ethics and now you're making the doctor the executioner."

  A  Fox News article relates “Some medical experts and others warn that execution chemicals could render organs unusable. They are also deeply disturbed by the prospect of death row inmates donating organs, even if it can ease shortages so severe that patients die while on the waiting list, questioning whether the condemned can freely give consent, or are desperately hoping to win clemency. They worry that such practices would make judges and juries more likely to hand out death sentences. And they are troubled by the notion of using inmates for spare parts.”

Tuesday, November 05, 2013

Ohio Supreme Court: ProgressOhio v. JobsOhio

A Columbus Dispatch article yesterday afternoon relays the question of “Whether a liberal policy group and two Democratic lawmakers can sue JobsOhio's having now morphed into a larger question of who can sue the government.”

 “The issue before the high court is whether ProgressOhio, state Sen. Michael Skindell of Lakewood and now-former Rep. Dennis Murray of Sandusky have legal standing to sue over the constitutionality of Gov. John Kasich’s JobsOhio plan in 2011,” the Dispatch’s article says -- and two lower courts have already ruled they did not, making the implications stemming from what happens tomorrow when the JobsOhio case presents oral arguments before the Ohio Supreme Court stretch far beyond this one lawsuit.

 Franklin County’s Common Pleas and Appeals courts ruled that Rothenberg, Skindell and Murray didn’t have legal standing to sue because they could not prove personal injury by the creation of JobsOhio, nor their claiming harm to the public.

 -- and The Dispatch reported another catch. “Rothenberg’s original lawsuit had nothing to do with standing, but whether it was constitutional for the state to ‘invest’ in a private corporation such as JobsOhio. The language of the law includes a provision requiring that all constitutional challenges had to be filed within 60 days of the law’s effective date, but the principal act that Rothenberg and his counterparts say is unconstitutional — JobsOhio’s acquisition of the state’s wholesale liquor profits, to fund the agency — didn’t take place until Feb. 1 of this year, long after that 60-day window for constitutional challenges closed.

 “If groups representing the public are not allowed to sue over potentially unconstitutional provisions passed by the legislature,” Rothenberg was quoted as saying. “it gives extraordinary power to the legislature to pass things in conflict with our Constitution.”

Monday, November 04, 2013

Internet Postings of Ohio Public Records

  Ohio House Representatives Mike Duffey and Christina Hagan, last week introduced a set of bills professing “the general assembly recognizes that public-use data from government agencies offers an avenue toward open and transparent government, stimulates business innovation, and can help government agencies become more effective; and declaring it to be a public purpose and function of the state to facilitate the ability of the public easily to find, download, and use data sets generated and held by the state government and other public offices, herein creates the DataOhio board to:
• Recommend categories of public records that state agencies and local governments should make available to the public online in an open format;
• Recommend technology standards for open data use in the state that reflect the most current standards nationally and within other states;
• Recommend accounting standards for financial data in the state to facilitate comparison across governmental units and services;
• Recommend metadata definitional standards for nonfinancial data in the state to facilitate comparison and use of this data across governmental units; and
• Consider creation by the state of, an online catalog of data sets made available by state agencies and local governments, as well as collaboration with efforts underway at the federal and state levels.

  Secondarily, having “the director of administrative services establish, administer and operate a web site to function as a portal and catalog where public records and data sets of public records, created by state government and other public offices, can be located and accessed by the public online.

  "The web site shall be registered at, and the state shall consider participation and affiliation of with, the official online data catalog of the United States government.”

Texts of Proposed HB 321 and HB 323 

Friday, November 01, 2013

Ohio House balks at proposed permanent Ohio income-tax cut

   The Columbus Dispatch this morning is carrying an article which is saying “after the state Controlling Board last week approved spending $2.56 billion in federal dollars to expand Medicaid for about 275,000 low-income Ohioans, Sen. Chris Widener’s proposal for a 4 % permanent state income-tax cut in Senate Bill 210, introduced last week, instead wants to take the estimated $400 million gained from expanding Medicaid and turn it into the income-tax cut – and it’s getting a cool reception from House GOP leaders.

  “The entire Senate GOP leadership team signed on to support the bill, which got its first hearing this week,” the  article said. “ Widener, one of the ‘yes’ votes on the board, has touted it as a way to build upon the phased-in 10 percent income-tax cut passed in the two-year budget that took effect in September, saying that by allowing all Ohio taxpayers to directly benefit from the unbudgeted savings is the economically sensible and the right thing to do,”

  House Republicans don’t exactly see it that way. House Speaker William G. Batchelder, was attributed as saying    he’s still looking for assurances that $400 million is the correct amount, and that, if it is, there are other issues that probably should be addressed first, saying “veterans are not being adequately treated, and the tremendous problems with heroin addiction in this state among the many problems we’d probably should look at before doing a (tax) cut of that size.”.